Definitive clarification needed

I am indebted to my colleague and university contemporary, Dr David Grech, for his most valid contribution "Definitive clarification needed" (November 20), which embellishes the healthy debate on what constitutes a practising advocate.

He very intelligently augurs that the discussion on qualifications for the appointment of judges should not end with my original articles ("Appointment of judges"). Not even for an infinitesimal fraction of a second did I ever imagine that it would, and I am more than gratified to observe that I have been instrumental in stimulating the airing of learned views on this debacle.

While purposely steering away from unnecessary repetition of reasoning which I have already espoused, I will take up the fresh point pertinently raised by Dr Grech in his reference to Section 42 of the Code of Police Laws.

However, matters must first be put in their proper perspective, erst we lose balance. Although he himself writes that indeed the very word "advocate" tends to emphasise his (or her) role before the courts, I perceive an attempt by Dr Grech to belittle the importance of the Code of Organisation and Civil Procedure. Perhaps in a bid to shake my argument to its very foundations. That is wrong because the Code of Organisation and Civil Procedure is one of our country's major codes of law, towering in stature like a giant when standing next to the Code of Police Laws.

Were it not so, law students such as Dr Grech and myself once were, longer ago than we both would care to contemplate, would not dedicate a whole year to its study and practice. At least so they should, if they wish to take their chosen profession a touch more seriously than the derisions of I.M. Beck would tend to encourage.

Having premised that, I will now proceed to tackle Section 42 of the Code of Police Laws. Ironically enough, this is set in Part III, under the telling title "Of The Law Courts". And that is only for starters, because what Dr Grech ought to have made clear is that Section 42, which is subordinate to Section 43 (laying down the offence of "touting"), only serves to define the expression "tout" for the purposes of that part of the Code under review.

Thus a tout means any person who, not being a duly qualified advocate or legal procurator or notary public in accordance with the laws of Malta, undertakes in return for any fee, reward or remuneration, whether in cash or in kind or for any other consideration, to do any of the acts listed in paragraphs (a), (b) and (c) of that same section of the law, among which are, under (a), the drafting or preparation (otherwise than on direct instructions of an advocate or legal procurator or notary public) of any affidavit, testament, deed of sale, deed of emphyteusis or lease, transfer, compromise, promise of sale, or any other contract or document under private signature or any writ of sumons or libel or statement of pleas or petition or reply or application or any other judicial or extra judicial document; and under (b) the giving of legal advice whether oral or in writing to any person.

That is of course as it should be, but it will immediately be appreciated that Section 42 lends nothing to the ordinary meaning of the term "advocate", and never was it ever suggested that the giving of advice, or the drafting of extra judicial documents, did not form part of an advocate's sphere of competence and responsibility taken as a complete whole.

That the very heart and soul of the exercise of the "profession of advocate" is to be conducted before the courts of justice, as a leading light in our pilotage manoeuvres towards the safety of harbour, remains however unassailed.

The most that can be implied from Section 42 of the Code of Police Laws, by applying reverse reasoning, is that a qualified advocate may draft both judicial as well as extra judicial documents (whether listed in Section 42 or otherwise), and may also give legal advice. And that is not at issue.

The issue is that, by steering clear of the courts of law, and thereby choosing to be selective, a qualified advocate cannot be said to be exercising the profession of advocate as this is unambiguously understood in ordinary language and as has been the custom of the sea in the waters of our system for the administration of justice since times immemorial.

On another facet, Dr Grech opines that one thing is clear, and that is to the effect that the various authorities having a hand in the appointment of a judge have differing opinions, and as a result have shot themselves in the foot.

I challenge this statement, because in my search for the plain truth I have unearthed another discovery, and that is that it was the prime minister who shot himself in the foot.

It may not be read by all your readers, but in a recent editorial, it-Torca made a rather sober analysis of the whole saga, although I do not care much for the political sniper shots which were inevitably taken.

I have it from one of the members of the Commission for the Administration of Justice that the sequence of events therein contained is absolutely correct.

It has resulted that the reference which the prime minister freely made to the Commission was a simple and unconditional one; that the Commission then privately communicated to the prime minister its doubts with regard to Dr Andrè Camilleri, in particular to the effect that Dr Camilleri had experience which was not necessarily tantamount to the exercise of the profession of advocate in the absence of which there was the possibility that the constitutional requirement in this regard was lacking; that instead of providing the Commission with the required clarifications, the prime minister made a public affirmation of Dr Camilleri's qualifications, and proceeded to advise the President of Malta (already presiding over the Commission) to proceed with the appointment, which was duly effected (and where, as I have already written, the President of Malta's hands were tied) ; that Dr Camilleri refused to take the oath of office (administered by the President of Malta) until such time as the Commission made an evaluation on the constitutional qualification issue; that the acting prime minister then wrote to the Commission urging that this request of Dr Camilleri be attended to; and that finally, in view of the fact that the prime minister had already proceeded with the appointment in spite of the Commission's expressed doubts as to whether Dr Camilleri satisfied the qualifications laid down by the Constitution, as is his constitutional prerogative, the Commission declared that it had no further function to perform with regard to this matter, already a fait accompli!

It-Torca went even further, editorially applauding the members of the Commission for the Administration of Justice for showing that they had fibre in their bones by refusing to act as puppets on a string in the hands of the prime minister.

Be that as it may, it will nevertheless clearly be perceived that it was the prime minister, by unwise and rash action, who publicly shot himself in the foot.

The Commission for the Administration of Justice had, after all, not reached a final decision on anything. It had only expressed reservations.

In fact, the door was left wide open to the prime minister to clarify the issue with the Commission. Unfortunately for us all, perhaps, he thought fit to act otherwise.

The truth may be hard to stomach, but face it we must, as otherwise we are all more the fools for it.